To some in the Legislature it seemed like a good idea to challenge the voter-approved constitutional term limits passed over a decade ago. Everything neatly fell into place as the lower courts overturned term limits following legislation designed to speed the challenge through the courts. But now lawmakers are dealing with the possibility of nearly all the citizen initiatives coming unraveled under the same legal theory used to challenge term limits.
A little History ...
In 1998, Measure 62, the "crime victims' rights" initiative, was approved by the voters. It included a smorgasbord of victim rights guarantees. However, based on language placed in the Oregon Constitution in 1908 that says only one constitutional amendment may be placed before the voters in any given measure, the victims' rights measure was overturned in the now famous case of Armatta v. Kitzhaber. The ruling immediately put every constitutional amendment made through the initiative process since 1908, including term-limits, at legal risk.
What's on the chopping block ...
It's hard to estimate what all would be thrown out if every voter-approved initiative passed since the early 1900s had to undergo the Armatta test. Although no one really knows the legal reach of the test, you should know that no initiative challenged since Armatta has survived under the Oregon Court of Appeal's interpretation of the test. By way of explaining why the legislature is hopping around looking at how to minimize the potential damage, here are some that may be at risk:
Measure 5: After citizens continually asked the legislature to shift some of the tax burden from property taxes to ANYTHING else, Don McIntire went straight to the voters with Measure 5, a property tax limitation measure, in 1990. However, what was presented as property tax relief to the homeowner actually was property-tax relief for business. So, this led to ...
Measure 50. Once private property owners were properly disillusioned with Measure 5, Bill Sizemore came back with a "fix it." However, once again, we got more relief for business than homeowners.
Measure 11: Oregon's tough-on-crime legislation, twice approved, removes a judge's sentencing discretion for certain crimes. As a result, jails have filled with individuals who have committed minor offenses, including young men who mistakenly kissed underage girls believing them to be older. Now, in part due to jail overcrowding with Measure 11 convictions, we release hardened criminals who do not fall under Measure 11 minimum sentencing guidelines.
The Oregon Lottery. Although most Oregonians believe lottery money is for education, this is not what was approved at the polls. Instead the voters directed the money toward economic development. This was later expanded (at the polls) to include maintenance of state parks. Obviously, if the courts throw out the lottery, so goes the state's bonding authority for all the projects it funds.
Women's Suffrage. This seems to be nothing more than a ploy from those wanting the status quo. After all, the federal government took care of a woman's right to vote long ago by following Oregon's lead and granting universal suffrage.
What to do, what to do?
The problem is that no matter how much you may hate a particular constitutional amendment enacted by the voters, there is someone (or some group) out there that loves it. So the legislature is considering a special session to minimize potential damage. So far, they're looking at variations on two themes:
1. Place before the voters a constitutional "revision" (something only the legislature can do) saying, in effect, that anything enacted before the last general election stands. This would preserve the status quo while allowing the Armatta test to tighten things up for the future. It also would leave measures now on appeal out of the mix.
2. Let things take their course. That means whatever gets challenged may well be overturned. It also means that state bonding for lottery funded projects goes on hold and that the court ruling on term limits could be problematic. For example, if the lower court decision to overturn term limits is upheld by the Oregon Supreme Court, it's possible (unless the Legislature refers new term limit legislation by September) that U.S. Term Limits might come into play. This could possibly leave Oregon with 8-year term limits rather than 12.
There is one more option that should be considered: look at all the initiatives that may be overturned due to Armatta, leave them out of the constitutional revision, and then enact legislation to reinstate the will of the voters as reflected in the abandoned initiatives. This is preferable because of the possibility of rectifying problems that were not foreseen when the initiatives were approved.
Stay tuned.
Cathy Shaw is chief of staff for Rep. Alan Bates, D-Eagle Point; an author; and the former three-term mayor of Ashland.
By Cathy Shaw
